Kerry Wagner v. State ( 2012 )

Opinion issued December 28, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00903-CR
———————————
KERRY WAGNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 121724501010
MEMORANDUM OPINION
Indicted for the third-degree felony offense of violation of a protective order,
Kerry Wagner pleaded guilty pursuant to a plea bargain and the trial court assessed
his punishment at five years’ confinement, suspended for five years, and a $500
fine. The State filed a motion to revoke Wagner’s community supervision almost
one year later. Wagner pleaded not true to the allegations in the motion to revoke
and after a hearing on the motion, the trial court found one of the allegations to be
true, revoked Wagner’s community supervision, and sentenced him to three years’
confinement. In a single issue on appeal, Wagner contends that there was legally
insufficient evidence. We affirm.
Background
The State’s motion to revoke alleged that Wagner had (1) failed to report to
his probation officer as instructed, (2) failed to obtain suitable employment for
three months, (3) failed to provide written verification of employment for one
month, (4) failed to perform community service and participate in a
domestic-violence specialized caseload program, (5) failed to pay certain fees and
fines, and (6) made contact with the complainant. Wagner pleaded “not true” to all
of the allegations in the motion to revoke.
Two witnesses for the State testified at the revocation hearing—Wagner’s
probation officer, Crishell Newton, and the complainant. Newton testified that
Wagner was required to, among other things, meet with her, perform community
service, participate in a domestic-violence program, and maintain suitable
employment. His probation prohibited his contact with the complainant, the mother
of two of his children. Newton testified that among the grounds for which she
2
moved to revoke Wagner’s probation were (1) his failure to meet with her twice—
once in person in November 2010 and once over the telephone, (2) his failure to
perform community service as instructed, and (3) his violation of the no-contact
order.
The defense offered testimony from three of Wagner’s family and friends,
and Wagner himself. Wagner denied calling, texting, or having any other contact
with the complainant since his probation commenced. Acknowledging the other
allegations in the motion to revoke, Wagner testified that he did not own a car for a
period of time and he had told Newton that he was unable to meet with her in
person on one occasion because of these transportation issues. Wagner’s sister,
too, noted that Wagner was without a car until recently and she or another family
member tried to accommodate him by providing him rides.
The trial court revoked Wagner’s community supervision, and sentenced
him to three years’ confinement.
Discussion
Wagner argues that the trial court abused its discretion in revoking his
community supervision because the State presented insufficient evidence to
support the trial court’s findings that Wagner violated the terms of his community
supervision. Specifically, Wagner argues that his alleged contact with Collins was
the “only real basis” for revoking his community supervision, and the evidence in
3
the record establishing that alleged contact was disputed, and uncorroborated by
documentary evidence.
Our review of the trial court’s order revoking community supervision is
limited to determining whether the trial court abused its discretion. See Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); see also Canseco v. State, 199
S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). When a trial
court finds several violations of community-supervision conditions, we will affirm
if the proof of any single allegation is sufficient. See Moore v. State, 605 S.W.2d
924, 926 (Tex. Crim. App. [Panel Op.] 1980); Canseco, 199 S.W.3d at 439. Thus,
to prevail on appeal, a defendant must successfully challenge all of the findings
that support the trial court’s revocation order. See Moore, 605 S.W.2d at 926; see
also Sterling v. State, 791 S.W.2d 274, 277 (Tex. App.—Corpus Christi 1990, pet.
ref’d) (citing Moore, 605 S.W.2d at 926).
Here, beyond Wagner’s alleged contact with the complainant, is Newton’s
testimony that Wagner failed to meet with her in person in November 2010.
Finding this allegation to be true, the trial court’s judgment expressly stated this
basis for the revocation. Because Wagner does not challenge the sufficiency of the
evidence supporting this ground for the revocation of his community supervision,
we overrule his sole issue. See Moore, 605 S.W.2d at 926; Sterling, 791 S.W.2d at
277.
4
Judgment Modification
Although the judgment revoking Wagner’s community supervision states
that Wagner pleaded “true” to the allegations in the motion to revoke, the
reporter’s record shows that Wagner actually entered a plea of “not true.”
“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court judgment
‘to make the record speak the truth when it has the necessary data and information
to do so, or make any appropriate order as the law and nature of the case may
require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.]
2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas
1991, pet. ref’d)). Accordingly, we modify the judgment to reflect that Wagner
pleaded “not true” to the allegations in the motion to revoke.
Conclusion
We modify the judgment to reflect Wagner’s plea to the State’s allegations
in the motion to revoke, and, having overruled Wagner’s sole issue, affirm the
judgment as modified.
Jim Sharp
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
5